Journalists who help chronicle and expose corruption in Illinois
governments have asked a state appeals court to step in, after a DuPage County
judge refused to dismiss a $16 million defamation lawsuit brought by a woman
who claims the men known as the Edgar County Watchdogs wrongly accused her of
committing a crime when they wrote she engaged in “pay to play” and used an
improper exemption to secure a no-bid contract from the College of DuPage –
awarded the same day she joined the college’s fundraising foundation board.

Kirk Allen and his non-profit news organization, Edgar
County Watchdogs Inc., have filed a petition with the Illinois Second District
Appellate Court in Elgin, asking justices to toss the decision of DuPage County
Circuit Judge Robert G. Kleeman, who denied their motion to dismiss the legal
action brought against the Watchdogs by plaintiffs Carla Burkhart and her
company, Herricane Graphics Inc., of west suburban West Chicago.

The Watchdogs have asserted their actions and articles are
protected by the U.S. Constitution’s First Amendment and by Illinois’ Citizen
Participation Act, which is meant to stop lawsuits brought by people and
organizations who may wish to use legal action merely to silence critics and opponents.

In this case, Burkhart brought her complaint in 2015 in
DuPage County Circuit Court, asserting the Watchdogs should be made to pay for
unfairly impugning her over the $630,000 no-bid sign contract she and her
company received from COD.

While the story received larger play from the Chicago
Tribune and other news outlets who have looked for years into alleged misconduct
and scandal at the controversy-plagued community college in Glen Ellyn, Burkhart chose only to sue the Edgar County Watchdogs, who publish their work on their website under the
banner “Illinois Leaks.”

In their reporting on the contract, the Watchdogs had
particularly zeroed in on allegations that Burkhart had sidestepped the public
bidding process – under which the college should have solicited a number of
bids from other companies – by submitting a proposed contract which indicated
she would be providing architectural services. The law allows such
architectural services contracts to be approved without bidding.

Burkhart is not an architect, nor did she employ an
architect to provide such services. A rider was added to the contract later
clarifying she would not be providing architectural services, according to
court documents.

The Watchdogs also noted Burkhart was awarded the contract
the same day she joined the COD Foundation, which raises funds for the college.
The Watchdogs wrote this indicated she had committed to raise money for the
college in exchange for the contract, which they said indicated a case of “pay
to play.”

Burkhart’s lawsuit argued the Watchdogs’ assertions defamed
her and harmed her business, as they implied she had committed crimes. She
demanded damages of $16 million.

On July 29, Kleeman refused to dismiss Burkhart’s case.

A court transcript of the proceedings that day indicated the
judge disagreed with the Watchdogs’ interpretation of an Illinois law, which
forbids people from purporting to be an architect, when they are not.

In the official transcript, Kleeman said he believed “holding
yourself out to be an architect” may not violate the law until the person doing
so advertises their services to the public as an architect when they are not
qualified to do so. He disputed the assertions of the Watchdogs’ attorney that there
is no difference between such false advertising and allegedly improperly using
an architectural services exemption to sidestep public contract bid award
requirements.

The judge further disputed the Watchdogs’ defense, which
leaned on the so-called “innocent construction” or “neutral construction” test
for the phrase “pay to play.” The judge found describing activity as “pay to
play” in a purported news article necessarily implies accusations of criminal
conduct, and, as such, isn’t protected by the Citizen Participation Act.

In their appeal petition, the Watchdogs argued the judge’s
interpretation in this case should not be allowed to stand.

In a statement following the filing of the appeal, Watchdogs’
attorney Shawn Collins, of the Collins Law Firm, of Naperville, told The Cook County Record the decision presented a
direct threat to constitutional protections of journalists and citizens acting in
the public interest to expose perceived government corruption.

“We disagree that referring to someone’s conduct as ‘pay to
play’ in the state of Illinois necessarily means that you are accusing them of
a crime,” said Collins. “If Illinois journalists will be threatened with suit
every time they use the term ‘pay to play,’ they just won’t use it - Who wants
to get sued? - and the citizens of Illinois will be the worse for it.

“And the practitioners of ‘pay to play’ will have a new layer
of protection, and no doubt be emboldened into doing more of it.”

In the appeal petition, Collins and the other attorneys
representing the Watchdogs asked the appellate court to step in to prevent an
improper lawsuit from continuing.

“Being forced to litigate when a CPA motion was filed and
improperly denied directly undermines the purpose of the CPA,” the Watchdogs
wrote in their appeal.

Collins noted the Second District court is not required to
take up the appeal, as it was brought before proceedings in the case had
concluded. However, he said he hoped “the appellate court will recognize the important
rights at stake here, and agree to hear the appeal now.”

“This case is especially important because it reminds us that
we must protect the First Amendment rights of journalists not only because they
deserve it, but also becausewe as citizens
need to hear what those journalists have to say,” Collins said.

“Today, the financial and contracting practices at the
College of DuPage are more transparent, and respectful of the taxpayers paying
for all of it, because of the work of the Watchdogs and others in the media who
investigated and brought to light how things were before,” he said. “It is
testament to how necessary good journalism is in Illinois.”

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